Chandler v Secretary of State for the Communities & Local Government & Anor

In determining whether development in a conservation area is acceptable, the statutory duty to pay special attention to the desirability of preserving or enhancing the area does not generally require enhancement. Development which leaves the character and appearance of the area unharmed may satisfy the preservation limb. Development plans must be construed as a whole and in their planning context. Broad policy objectives favouring conservation and enhancement do not impose a hard-edged pre-condition that development must improve the area, or that a special justification must be shown where it does not. The decisive question is whether the development is consistent with the plan’s protective purpose and avoids adverse effect. A development plan cannot displace a separate statutory duty, although both must be considered and weighed where they point in different directions.

The claimant challenged, under section 288(1) of the Town and Country Planning Act 1990, an inspector’s decision allowing an appeal against refusal of planning permission. The permission authorised a two-bedroom extension to a bungalow opposite a listed building in the Wray Common Conservation Area.

The challenge concerned only the conservation-area issue. The claimant argued that the inspector had applied the wrong test by finding that the development would preserve, rather than enhance, the character and appearance of the area, and by failing to identify a special reason for permitting development which did not enhance it.

1. Application dismissed. The inspector’s decision was not invalid. The claimant was a person aggrieved for the purposes of section 288(1) of the Town and Country Planning Act 1990, but the challenge failed on its merits.
2. Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 required the inspector to pay special attention to the desirability of preserving or enhancing the character or appearance of the conservation area. The distinction between preservation and enhancement was material. Preservation could be achieved where the character or appearance was left unharmed, even without positive improvement. The inspector had expressly applied that statutory framework and concluded that the proposed development would preserve the area.
3. The development plan comprised the Surrey Structure Plan 2004 and the Reigate and Banstead Borough Local Plan 2005. Policy SE5 of the Structure Plan stated the broad objective of conserving and enhancing cultural heritage. It did not prescribe enhancement as a pre-condition of development. Its commentary was an aid to construction and confirmed that enhancement was desirable where possible, rather than mandatory in every case.
4. Policy Pc13 of the Local Plan likewise required careful control of design, scale, materials, setting and skyline so that development complemented the conservation area. Read with its commentary and related provisions, it required development to be in keeping with the area and not adversely affect its character. It did not require positive enhancement or a special justification whenever development was neutral.
5. The inspector had considered the relevant planning features. His findings that existing vegetation screened the bungalow and that the development would preserve the conservation area were open to him. Even if the development plan had required a more stringent approach, the inspector’s express conclusion that the area would be preserved meant that the result would have been unchanged. A separate statutory duty could not be overridden by the development plan, as explained in Hetherington (UK) Ltd v Secretary of State for the Environment [1994] 2 PLR 9.

The application was dismissed. Costs were provisionally to follow the event, with the claimant provisionally ordered to pay the Secretary of State’s costs assessed at £5,697.66, subject to written representations.

The judgment describes an earlier planning appeal, rather than an appeal in the judicial-review proceedings:

• Local planning authority: Reigate and Banstead Borough Council refused planning permission.
• Inspector appointed by the Secretary of State: The appeal was allowed and planning permission was granted subject to conditions.
• High Court (Administrative Court): The application under section 288(1) of the Town and Country Planning Act 1990 was dismissed.